Campbelltown City Council v Toth (Class 4)

[2004] NSWLEC 275

Land and Environment Court

of New South Wales

CITATION:	Campbelltown City Council v Toth (Class 4) [2004] NSWLEC 275
PARTIES:	Campbelltown City Council (Appl) Tim Toth (Resp)
FILE NUMBER(S):	40476 of 2003
CORAM:	McClellan CJ
KEY ISSUES:	Question of Law :- Appeal from a commissioner Application for adjournment Denial of procedural fairness and natural justice PRACTICE AND PROCEDURE Advocate's duty to assist commissioners with matters involving legal principles COSTS: In class 4 Role of advocates in assisting commissioners in respect of matters involving legal principles
LEGISLATION CITED:	Land and Environment Court Act 1979 (NSW)
CASES CITED:	Kioa & Ors v West & Ors (1984-1985) 159 CLR 550; State of Queensland & Anor v J L Holdings Pty Limited (1996-97) 189 CLR 146
DATES OF HEARING:	30 April 2004
EX TEMPORE JUDGMENT DATE :	04/30/2004
LEGAL REPRESENTATIVES:	A Pickles (Appl) Abbott Tout (Solicitors) P R Glisson (Resp) Hancocks Solicitors (Solicitors)

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40476/03
10625/03

McCLELLAN J

FRIDAY 30 APRIL 2004

CAMPBELLTOWN CITY COUNCIL

Applicant
v

TOTH

Respondent

Judgment

Introduction

1 HIS HONOUR: The matter before me is an appeal pursuant to s 56A of the Land and Environment Court Act 1979 (NSW) from the decision of Commissioner Hussey of 4 February 2004. The class one appeal before Commissioner Hussey related to the Council's refusal of a development application that sought consent for the construction of a first floor addition to an existing commercial building for use as restricted premises (a sex shop) at 55 Queen Street, Campbelltown. The land is presently occupied by a single storey commercial building containing three adjoining shops. The restricted premises for which consent is sought are presently operating without consent from unit 1 within the commercial complex.

2 The application considered by Commissioner Hussey was lodged with the Council after the Court had rejected an appeal in relation to a previous application to make lawful the occupation of unit 1. I understand that earlier appeal was rejected in April 2002.

3 The proceedings before Commissioner Hussey demonstrate many of the difficulties which can arise when parties have failed to efficiently prepare and present their cases to the Court.

4 The proceedings were heard commencing on 13 October 2003 and, although for a relatively straightforward application, occupied two days. Being incomplete, they were adjourned and resumed hearing on 14 November, with interlocutory matters being dealt with on 11 November.

5 There were a number of issues litigated before the Commissioner. One of them was the social impact of the development in the locality. That issue had been raised in the proceedings disposed of in 2002, when the Council had called Dr Stubbs, a social planning consultant, to give evidence. Dr Stubbs was again called in the proceedings before Commissioner Hussey and she provided a written report and oral evidence.

6 The respondent, Toth, (applicant in proceedings before Commissioner Hussey) also called a social planner, Mr Boers. I understand that Mr Boers had also given evidence in the earlier proceedings and on 1 October 2003 there was a conference between Dr Stubbs and Mr Boers in which they discussed the evidence that each proposed to give to the Court in the current proceedings. I understand that at that meeting each of them had a draft of their respective reports which they were proposing to put before the Court.

7 It was not until 9 October, on the respondent's case, that a copy of Dr Stubbs’ final report was received by the respondent’s solicitor. For the purpose of these proceedings, I am content to accept that date as the date upon which the report was received, although the applicant says it was about a week earlier. In any event, from 1 October and through the joint conference process it is plain that Mr Boers would have been aware of the nature of the evidence that Dr Stubbs was to give.

8 As I have indicated, the proceedings were not completed within the first period of time allocated by the Court for the hearing. The matter was then re-listed for 14 November 2003, a date upon which senior counsel who had appeared for Toth did not expect to be available. That matter was the subject of argument before the Registrar and ultimately a motion was brought before Talbot J to seek to have the further hearing date vacated. So far as I can see, that application was misconceived.

9 The matter was part heard before Commissioner Hussey, who had responsibility for its further disposition. It was not a situation where a matter had been fixed for hearing without the Chief Judge having allocated a Commissioner to hear it and in circumstances where the List Judge had responsibility for maintaining the list for the whole Court. In the present case, the matter was part heard and the responsibility for its fair disposition had been given to Commissioner Hussey. Only Commissioner Hussey was in a position to determine whether or not it was fair to require the matter to proceed on the date fixed for it. Of course, if Commissioner Hussey erred in that decision and the error could be identified as a legal error, there would be a right of appeal to a judge of the Court. In the ultimate of course, that is what has now happened.

10 Talbot J declined the application and the matter proceeded on 14 November. On that day, senior counsel for Toth again sought an adjournment. On this occasion the adjournment sought was founded upon the premise that Toth wished to call additional evidence in relation to the evidence which had been tendered by Dr Stubbs. Part of Dr Stubbs’ evidence was the results of a survey which she arranged to be conducted within proximity of the premises seeking the view of local people as to the impact of the development upon the community. The relevance and legitimacy of a survey for this purpose is in my opinion dubious, however it had been admitted in evidence by the Commissioner and the applicant indicated a desire to respond to it.

11 Senior counsel for Toth indicated that he wished to call evidence from Dr Szuster, who apparently has expertise in statistics. The challenge sought to be made was to the statistical integrity of the survey evidence which had been tendered. So far as I can determine the desire to call this evidence was not present during the initial two days of hearing. It was also not revealed by 21 October and there is no suggestion that Dr Szuster had been retained, but it would appear that it was likely that Dr Szuster had been approached by 31 October.

12 I am satisfied that the desire to challenge the statistical basis of Dr Stubbs’ survey arose only sometime after the initial hearing of the matter. In those circumstances, if the proceedings had been concluded in the time originally provided for them, there would have been no question of any intention to call Dr Szuster. The respondent simply had not appreciated that this might provide a basis for challenge.

13 The evidence does not enable me to say with precision when the desire to call Dr Szuster arose. Nor am I able to identify why it was that at some later point in time this was thought to be necessary. However, that desire was expressed to the Commissioner on 14 November and there was argument before him as to whether or not it would be permitted, it being realised that if this was to occur, a further adjournment of the proceedings would be required. The respondent had been unable to obtain a report from Dr Szuster by 14 November and it was indicated that some further time would be required beyond the time allocated for the hearing.

14 After argument, the Commissioner dismissed the application for an adjournment. It is plain from his statements in the transcript of the hearing that he relied in part for his decision upon the fact that Talbot J had declined an application for adjournment some days previously. He said when making his decision:

“There was the opportunity to pursue the need for extra time or adjournment with Talbot J and I think that the application that is made now before me is very similar in intend as that made before him. If as I am told by that submission that he thought that the matter should be completed in two hours or half a day and the party should get on with it if that’s the intent of it I’m inclined to go with that because it seems to me that if I make an alternative ruling that is just reviewing the same material as put before Talbot J and coming to a different decision and overturning his ruling on the case management for this particular case. I am going to dismiss the application for adjournment and say to the parties that they proceed on the basis of whatever evidence is agreed to come before the Court now.”

15 Unfortunately the reasoning process revealed by the Commissioner does not reflect the decision which he was required to make. However, he is not to be criticised in any way for this. The responsibility for the problem lies entirely with counsel. As I previously indicated, the application to Talbot J was misconceived. Commissioner Hussey had responsibility for the matter and it was for him to determine whether or not the proceedings should be adjourned or should continue. There was no further role for a judge of the Court in the case management of the proceedings. The proceedings had to be managed by the Commissioner subject only to a review of any decision he might make by way of a s 56A appeal.

16 It is plain that in reaching the decision which he did, Commissioner Hussey was guided by the fact that Talbot J had declined the application which was made to him. In this respect the Commissioner did not adequately bring into account the basis on which the adjournment before him was pressed. The fact that the matter had gone before Talbot J deflected the Commissioner and the parties from a consideration of the issues which truly arose.

17 Notwithstanding that the Commissioner had ruled that the application for adjournment would not be granted, senior counsel for Toth continued to argue the point. I do not need to set forth the text of the transcript which followed, but it reflects poorly upon counsel. The Commissioner having made his decision, it was the duty of those who appeared before him to accept that decision and move to complete the case in an efficient manner. If it was believed that the decision contained an error, the appropriate course was to bring an appeal to a judge.

18 All of that being said, the respondent in these proceedings, Toth, says that the decision to reject the application for adjournment so that Dr Szuster’s evidence could be provided to the Court miscarried and the respondent has been denied procedural fairness. When making the application to Commissioner Hussey, senior counsel for Toth submitted that rejection of the application would involve a denial of natural justice to the respondent and apparently proffered a list of authorities: That list of authorities has not been retained and I do not know what was in it. However, the transcript does not suggest that copies of relevant decisions were provided to the Commissioner, nor was any attempt made to explain to him the basis in law for the application. At the very least, when appearing before a Commissioner of this Court appointed for his or her expertise in relation to environmental and planning matters and not necessarily, and indeed in the case of Commissioner Hussey, not a qualified lawyer, the fundamental duty of any advocate is to ensure that every assistance is given to the Commissioner in reaching the decision which he or she must make on a matter which involves legal principles. The legal principle being urged upon the Commissioner here was that to proceed to determine the matter without an opportunity for the respondent to respond to the statistical material of Dr Stubbs would be to deny a fair hearing.

19 The principles in relation to a fair hearing before a Commissioner of this Court have been considered on a number of occasions. This Court has also been called upon to consider the procedures of Commissions of Inquiry and whether or not they have provided parties with a fair hearing.

20 In determining whether or not a fair hearing has been given, it is important to bear in mind the obligation of the Court to ensure that its resources are used efficiently so that, consistent with a fair hearing, there is a prompt and efficient disposition of the Court’s business. To assist in providing efficient processes, the Court in many cases utilises the conventional case management tools. In this way the issues which are required to be litigated can be defined and the evidence necessary to resolve them identified and efficiently brought forward. However, as the High Court said in the State of Queensland & Anor v J L Holdings Pty Limited (1997) 189 CLR 146 at 154: “Case management is not an end in itself”. The overriding principle is that notwithstanding the need for prompt and efficient disposal of litigation, the parties must be provided with a fair hearing.

21 A fair hearing involves an opportunity to put before the tribunal determining the matter evidence or submissions which deal with an issue which could be determined adversely to one party. Expressed in conventional terms in Kioa & Ors v West & Ors (1985) 159 CLR 550, Mason J confirmed the fundamental rule of the common law that when an order may be made which “will deprive a person of some right or interest or the legitimate expectation of a benefit” he is entitled to know the case sought to be made against him and be given an opportunity of replying to it.

22 The respondent submits that in the present case the failure by the Commissioner to allow an adjournment so that the evidence of Dr Szuster could be tendered denied him a fair hearing. Although the matter is finely balanced, I am satisfied that I should accept this submission. As I have indicated, the decision which the Commissioner made was made more difficult by the fact that the application had been made and dismissed by Talbot J. However, the issues that Talbot J examined were not the same as the issue which at this point of the proceedings surfaced before the Commissioner.

23 The matter is finely balanced because, having regard to the way in which the case had proceeded, the respondent had been provided with opportunities to call evidence from Dr Szuster or some other qualified person at an earlier stage of the proceedings. There is no explanation before me as to why that step had not been taken at that earlier point in time. I can only assume that counsel or the solicitors acting in the matter had overlooked this aspect of the evidence of Dr Stubbs. That is regrettable. In many cases the respondent would be required to bear the consequences of the failure of his representatives to have addressed this issue.

24 However, in the present case, having regard to the fact that the matter had not proceeded efficiently and that adjournments had already been provided in relation to the matter, a serious question was raised once the respondent indicated that he wished to mount an attack upon the statistical basis for the evidence of Dr Stubbs’ survey.

25 I have previously indicated that for my own part, survey evidence of this nature is unlikely to be of great significance in determining a development application. An examination of the reasons of Commissioner Hussey would suggest that the Commissioner did not see the matter as of particular significance, although it cannot be said that he did not have regard to it. In paragraph 33 of his reasons he says this:

“Under these circumstances then, I prefer the evidence of Dr Stubbs because of her extensive social impact assessment experience and specialist qualifications. Furthermore she has provided detailed information and references in her subsequent report, which seems to justify her approach. Also, because of the more specific focus of her surveys within a 150 and 400 metre radius of the subject site, to assess the impacts. It seems Mr Boer’s survey covers a much broader area of Campbelltown and is based on generalised questions, which in my opinion are not as reliable because of the lack of focus and impacts from this particular site.”

26 This conclusion indicates a reliance by the Commissioner on the evidence of Dr Stubbs. Furthermore it indicates that the Commissioner has preferred the evidence of Dr Stubbs to Mr Boers because of, inter alia, the favourable assessment he formed of the reliability of Dr Stubbs’ survey. As the evidence to be called by the respondent would have brought an attack on the statistical reliability of that survey, it is plain that, if tendered, the Commissioner would have to have regard to it.

27 In those circumstances it seems to me that the respondent could rightly complain that the hearing has not been fair when he was shut out from bringing evidence to attack the statistical integrity of the survey.

28 The Commissioner’s reasoning is reinforced by the very last sentence of his reasons. The whole of the relevant paragraph is in the following terms (at [41]):

“In the ultimate then, I note the evidence that there are no other restricted premises in the 10(a) zones and that also the approval of this application is contrary to the proposed draft controls. Furthermore it does not in my assessment, demonstrate reasonable compliance with the DCP 85 and DCP 122 locational controls to demonstrate that this is an appropriate location for this sensitive use. On balance I also consider that the evidence indicates that the negative social impacts outweigh any positive impacts in this location.”

29 I understand the last sentence to be a reference, inter alia, to the survey material prepared by Dr Stubbs. Again, as the respondent sought to challenge the reliability of that material based upon the evidence of Dr Szuster, in all of the circumstances in this case I am satisfied he should have been allowed to do so.

30 In a case of this nature, a decision as to whether or not to preclude further evidence will sometimes be difficult. As this case demonstrates, those advising litigants in this Court, or indeed in any court, sometimes overlook issues or fail to attend diligently to the task of preparing their client’s case. In many instances, as I have indicated, this will have the consequence that the affected litigant will be unable to complain about the course of the proceedings in the court but, of course, may have other remedies against those responsible for the problems. However, in the present case, an adjournment, perhaps for a further three weeks, with a short hearing to follow in relation to Dr Szuster’s evidence would not, in my opinion, have conflicted with the necessity for the efficient disposition of appeals that would have provided an opportunity for the resopndent to reasonably present material which was available to assist the determination of the relevant issues.

31 The respondent also complains that he was denied procedural fairness because he was denied an opportunity to cross-examine Dr Stubbs on relevant issues and because he was denied an opportunity to call Mr Boers in reply.

32 The first of these matters can be shortly disposed of. Senior counsel for Toth sought the leave of the Commissioner to cross-examine Dr Stubbs in relation to the results of a survey conducted in 2001/2002 and a survey conducted in 2003. It was said that the data conflicted and senior counsel wished to explore those conflicts. The Commissioner rejected the application for leave saying they were factual matters and he did not believe that an exploration of the conflicts with the witness would be of assistance. The argument was brief but it would seem to me that the decision which the Commissioner made was well within his discretion. If there was a conflict between the survey material, no doubt counsel could point that out and seek to persuade the Commissioner that as a consequence the survey should be rejected.

33 It was not necessary to carry out a cross-examination to make this point. Indeed all that a cross-examination would be likely to have done was to repeat the material which was in the written documents. However, as it happens, notwithstanding the ruling that the Commissioner made, senior counsel proceeded to cross-examine on this very matter without objection from counsel for the applicant. Examination of that cross-examination confirms (as I would expect) that it served to do no more than repeat the conflicts which are revealed by the written material. In any event, as cross-examination did take place, any complaint of a denial of procedural fairness for this reason is not tenable.

34 The final matter relates to a twenty-page report prepared by Dr Stubbs which was apparently tendered by the applicant. The report was a report prepared after a joint conference between Dr Stubbs and Mr Boers which seems to have been an almost total failure as little was agreed. However, Dr Stubbs prepared a twenty-page report which found its way into evidence and senior counsel sought to recall Mr Boers to reply to it. The Commissioner rejected the application. In my opinion, the Commissioner was right in the decision which he made.

35 Notwithstanding that the report was a lengthy document, by this stage of the proceedings the issues had been clearly identified and the position of the respective experts was well known. Recalling Mr Boers could not have added to the material to which it was necessary to have regard in determining which expert to accept in relation to the matters of controversy between them. This of course is to be contrasted with the evidence which it is said Dr Szuster would provide which was confined to an attack upon the statistical integrity of the survey material.

36 For those reasons, I am satisfied that the appeal should be upheld and it remains to consider what further orders should be made.

GLISSAN: We seek order 1 in the notice of motion which is the decision of 4 February 2004 be set aside or quashed and consequentially on that that the proceedings be remitted to Commissioner Hussey for determination in accordance with the reasons just given and if your Honour is so minded following the event success would seek an order for costs.

PICKLES: In relation to costs I submit each party bear its own.

HIS HONOUR: You don’t have to say anything further about that. But what should I do in relation to the further hearing? My inclination is to make directions now which I can do in relation to Dr Szuster’s evidence and to provide a hearing day for the completion of this matter. My present disposition would be that there should be no order as to costs, do you want to say anything?

GLISSAN: I gathered that was your Honour’s view, no there is nothing much more I can say.

HIS HONOUR: What about any directions in relation to any further hearing of the matter?

GLISSAN: Would your Honour be prepared to allow that to be done by a Registrar so that we’ve got time to--

HIS HONOUR: No. You can come back to me on Monday morning.

GLISSAN: Can we have that leave because I don’t know how long we need for Mr Szuster’s evidence. Last time we need at least three to four weeks I am told.

HIS HONOUR: You won’t be given very long. I want to know why it’s going to take three to four weeks. It seems to me a task that could be done within a couple of weeks and that’s what I’ve got in mind as a reasonable time.

GLISSAN: Could we work out a set of short minutes between now and 9.15am on Monday?

HIS HONOUR: Yes, then I’ll find a day that Commissioner Hussey can deal with the matter as well, which should be shortly.

37 I make the following orders:

1. The decision of Commissioner Hussey of 4 February 2004 to refuse consent to development application number F1019/2002 for the use of the first floor premises at 1/55 Queen Street Campbelltown as a restricted premises is set aside.

2. I remit the application to Commissioner Hussey to be determined in accordance with law.

38 The respondent has sought an order for costs. The basis for that application is that the usual order should follow, the respondent having succeeded in the appeal. However, examination of my reasons for upholding the appeal indicates that I am satisfied that the error which has occurred in this case was the responsibility in part of the respondent and those representing him. The application made to Commissioner Hussey was confused by the fact that an earlier but misconceived application had been made to Talbot J.

39 But beyond that, senior counsel for Toth, although advancing and arguing at length that his client would be denied natural justice, failed to assist the Commissioner in understanding the relevant legal principles which were required to be applied. Counsel appearing in this Court have a responsibility, as of course they do in any court, to assist the court in relation to any matter of legal principle. That obligation requires counsel to provide a list of authorities together with copies of unreported decisions in the event that a particular matter requires argument.

40 It may be assumed a judge of the court will be familiar with the authorities in relation to many issues which arise but there will, of course, be occasions where detailed exploration of previous decisions is necessary. However, the same assumption cannot be made with respect to Commissioners of the Court. Commissioners are appointed not for their legal training, although some have that training, but rather because of their special expertise in relation to matters of the environment and planning. Commissioners cannot be expected to have an understanding of legal principle in the same way as judges or indeed as practising lawyers will have. Accordingly, when a matter of legal difficulty arises and a party wishes to submit that a particular principle should guide the Commissioner’s decision, it is fundamental that the advocate do whatever he or she can to assist the Commissioner to correctly decide the question. This will involve in a case such as the present provision to the Commissioner of copies of relevant decisions together with a helpful explanation of the principles which are to be found within those decisions which should guide the outcome of the case.

41 In the present matter, senior counsel failed not only to provide the Commissioner with assistance by way of copies of relevant decisions but provided the Commissioner with absolutely no assistance in understanding those decisions and the relevant principles which were said to emerge from them.

42 In those circumstances I am satisfied that the failure of the respondent’s representatives to assist the Court to come to the appropriate conclusion was such that the respondent should be denied an order for costs.

43 It remains to determine the future course of these proceedings, the respondent says that enquiries need to be made as to the availability of Dr Szuster. I will provide until Monday morning for those enquiries to be made but the parties are to mention the matter before me at 9.15 on Monday so that I can put in place directions for the provision to the respondent of the applicant’s further evidence and set a date for the future hearing before Commissioner Hussey.

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